Oh, who are we kidding? It’s going to be “on” for opponents of Supreme Court Justice Brett Kavanaugh for at least through the midterms, and probably all the way to 2020. Kavanaugh hears his first arguments from the bench today, having salted away the traditional duties of cafeteria supervision befitting the tradition for SCOTUS newbies.
Despite the esoteric nature of the two cases being argued today — both involving mandatory sentencing enhancement policies — the New York Times is live-blogging the events at the courthouse and notes that long lines have developed to get in to see the action. Protesters, however, are in surprisingly short supply:
People hoping to see Justice Brett Kavanaugh’s first day on the Supreme Court bench are waiting in long lines outside the court. Police barricades are up in front of the court, but the few protesters on hand are congregating near the garage where the justices enter.
Protesters held signs that said, “We will not forget” and “We do not consent,” following the acrimonious fight that culminated in Kavanaugh’s 50-48 confirmation by the Senate on Saturday. …
The scene Tuesday morning contrasted sharply with a loud demonstration on Saturday, when chanting protesters climbed the normally off-limits Supreme Court steps and plaza.
Don’t be surprised if a few protesters have gotten in line. If today’s two sessions end without an outburst from the gallery, it’d be a minor miracle. This being argument, today’s session is unlikely to produce any major news other than the novelty of it being Kavanaugh’s first day on the job; his family will be on hand in the chamber to share the day with him.
They weren’t alone, either:
Anthony Kennedy is seated in the Supreme Court audience, robe-less, wearing a suit and tie for Kavanaugh’s first day on the bench.
— Sahil Kapur (@sahilkapur) October 9, 2018
The biggest news from today’s deliberations may have already taken place. The court denied cert on an appeal of a 2017 Kavanaugh ruling from the DC circuit that struck down a Barack Obama administration rule relating to greenhouse gases:
The U.S. Supreme Court on Tuesday turned aside appeals of a 2017 lower court ruling by its newest justice, Brett Kavanaugh, that struck down an environmental rule imposed under former President Barack Obama regulating a potent greenhouse gas linked to climate change.
The appeals had been brought by an environmental group and companies that supported the 2015 rule that had limited hydrofluorocarbons, which are used in a variety of products including spray cans and air conditioners.
The ruling authored by Kavanaugh, confirmed by the Senate on Saturday after a contentious political battle, was made by a divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, the court on which he formerly served. The 2-1 ruling threw out the rule issued by the U.S. Environmental Protection Agency during Obama’s presidency. …
Kavanaugh has a long history of skepticism toward environmental regulations, especially those concerning air pollution.
“However much we might sympathize or agree with EPA’s policy objectives, EPA may act only within the boundaries of its statutory authority,” Kavanaugh wrote in the ruling.
That will set off more hysteria over Kavanaugh’s confirmation, but it’s meaningless. It only takes four justices to grant cert, which means that Kavanaugh’s appointment didn’t force an end to the appeal. At least one of the liberal justices declined to vote for cert in this case, and perhaps more than one. The result is a tacit endorsement of Kavanaugh’s ruling on the limit of executive power in agency law, one that sets a precedent for future court cases unless the Supreme Court chooses to revisit it.
That sounds as though the skepticism Kavanaugh expressed is more widely shared than Reuters credits in this report. It should remind everyone that Kavanaugh was no judicial radical, but instead a mainstream jurist interested in institutional integrity rather than ideology. Kavanaugh has to feel gratified for the endorsement from his colleagues and from his mentor, as it’s not a bad way to start off his first day in his public role as associate justice.